Saturday, January 19, 2013

Does Guilt Really Matter

Guest Blogger: James Sheehan

Jack Tobin is the main character in the three novels I have
written. He represents people who are accused of crimes and even people who
have been convicted of murder and are on death row, but he’s not a criminal
defense lawyer.

Wait a minute, you say, he’s a lawyer. He represents people
accused of crimes and people convicted of crimes, but he’s not a criminal
defense lawyer? How can that be? Well, I make that statement based on my
definition of a criminal defense lawyer.

Let me tell you a true story. Many years ago, maybe as many as
twenty years ago, a friend asked me to try a case for him. He’d gotten in over
his head, he thought he could settle the case, and he couldn’t. So he asked me
to try it. Normally, this is something I would never do, but, against my better
judgment, I agreed to take the case.

It was a false arrest case. Four years earlier, a bank had
accused my client of passing bad checks and had her arrested. The state charged
her criminally based on the bank’s representations and she had to go to trial
to establish her innocence. I called my client’s criminal lawyer to testify in
the civil case and, because I got into the case so late, I never spoke to him
before he took the stand. He was a good witness and he testified in great
detail about the criminal case and about the client and what she went through
emotionally, but as he was testifying I thought: The criminal case was four
years ago. He probably had hundreds of clients in the interim. How did he remember this woman?I was sure the jury would be
thinking the same thing, but asking that question would violate the lawyer’s
golden rule--never ask a question you don’t know the answer to. I had to take
the risk.

I never forgot his answer: “I remember her very well because she
was innocent. Most of my clients are guilty.”

That’s my definition of a criminal defense lawyer: a person who
makes his or her living representing people who are accused of crimes, most of
whom are guilty. You might ask and I have been asked this many, many times even
though I, like Jack, am not a criminal lawyer--How can you do that? How can you
as a person, never mind that you are a lawyer, represent somebody that you know
is guilty?

It’s complicated. And there are many good people who become
criminal defense lawyers. Why? Well, you have to start with the constitutional
concept that everyone accused of a crime is entitled to a lawyer. So there is a
need. But, if it’s a lawyer’s ethical obligation to tell the truth--to never
put on a false case--how can he or she represent people who are guilty? Right
about now, the skeptics out there are laughing out loud. “Lawyers telling the
truth! Lawyers’ ethical obligations! Who are you kidding?”

Although I have to agree that there are some lawyers out there
who are in it for the money and who will do anything to get their clients off,
most abide by the rules. How do you do that? Well, first and foremost, the
State has the burden to prove somebody is guilty beyond a reasonable doubt. A
criminal lawyer can successfully defend his client without putting a witness on
the stand, without offering any evidence at all--by simply attacking and poking
holes in the State’s case. Second, a criminal defense lawyer does not ask his
or her client if he or she is innocent or guilty. The only thing he or she
wants to know is whether there is any evidence, like an alibi, exculpating the
client from the crime.

So, in general, those are the parameters in which a criminal
lawyer operates. Are there grey areas? Absolutely. It’s within those dark,
dingy grey areas of ambiguity where writers like me operate. In my next book, The Alligator Man, which comes out in
October, 2013, one of my main characters. Kevin Wylie, is working as a criminal
lawyer for a very disreputable man who had stepped over the line between the
lawyer and the criminal many years before. It’s an easy step to take and, if
you’re representing criminals all the time, why not? When he learns the truth
about his boss, Kevin has a dilemma. We shall see if he chooses the right path.

That has never been a problem for Jack Tobin. He has always known the right path. Jack’s angst is a little more complicated. I said at the beginning of this piece that Jack was not a criminal lawyer and I made that statement because Jack, up to now, only represented people who he believed were innocent. In The Mayor of Lexington Avenue, he represented Rudy Kelly, an intellectually challenged beautiful young man who was clearly innocent. In The Law of Second Chances, he represented Henry Wilson, a career criminal, who Jack believed was innocent of the crime of murder for which he had spent seventeen years on death row.

In my new book, The
Lawyer’s Lawyer, Jack is sure that Thomas Felton was framed for the two
murders for which he was convicted, but he is not sure that Felton is a serial
killer as everyone else involved in the case believes. He agrees to represent
Felton not because he believes in him but because he knows the State made up evidence to win the case. This is new
territory for Jack. And that brings us to the other perilous cliff for criminal
defense lawyers: When a lawyer takes a case, he or she has an ethical
obligation to do the best job he or she can do for the client. What happens
when you represent a murderer and you are successful, but the person might
actually be guilty? How do you live with that? And what happens when that
person is possibly a serial killer? Does Jack have to deal with something that
devastating?

You’ll have to read the book to find out.

James Sheehan was a trial lawyer for over thirty years.
Presently, he is a visiting Professor of Law and the Director of the Tampa Law
Center at Stetson University College of Law. To learn more about him you can
visit his website on Facebook at James Sheehan,
Author, or on Twitter @James_Sheehan_. He is published by Center Street, a division of The Hachette Book Group.

2 comments:

Excellent response to one of the most difficult questions lawyers face -- an issue that arose in India recently when a number of lawyers refused to represent the men accused in the much-publicized gang rape and murder case.

I have often followed criminal cases and wondered how the defense attorneys could bring themselves to represent their scummy clients. At the same time, I have to admire a lawyer who can do criminal defense work without becoming corrupted and jaded -- and this type of situation is one I almost always enjoy exploring in a good novel. I'll definitely be looking for your book. Thanks for being with us this weekend on Poe's Deadly Daughters.